Opinion
570191/11.
08-18-2011
Beacon 109 223-225 LLC, Petitioner-Landlord-Respondent, v. Mon Sheng Wu, Respondent-Tenant-Appellant, -and- Mika Furuya, "John Doe" and "Jane Doe," Respondents-Undertenants.
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
Tenant appeals, as limited by his brief, from so much of an order of the Civil Court of the City of New York, New York County (David J. Kaplan, J.), entered November 29, 2010, as denied his cross motion for summary judgment dismissing the petition in a holdover summary proceeding.
Per Curiam.
Order (David J. Kaplan, J.), entered November 29, 2010, insofar as appealed from, affirmed, with $10 costs.
Civil Court properly denied tenant's cross motion for summary judgment of dismissal of the holdover petition. Tenant failed to establish as a matter of law that landlord "intended to relinquish a known right" (Sullivan v Brevard Assoc., 66 NY2d 489, 495 [1985]), when it accepted a single, unsolicited rent check from tenant "during the so-called window period' between termination of the tenancy on nonprimary residence grounds and the commencement of the within [holdover] proceeding" (West Waverly Equities Group v Lieff, 190 Misc 2d 280, 281 [2001]; see Baginski v Lysiak, 154 Misc 2d 275, 276 [1992]; Metropolitan Ins. & Annuity Co. v Hartman, 11 Misc 3d 140[A], 2006 NY Slip Op 50665[U] [2006]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.